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Complicity
1. MODES OF PARTICIPATION

(a) As a joint principal (note the spelling!)

By coincidence, P and S simultaneously and independently attack V, who dies from the
cumulative effect of the blows. They are both principals in the murder of V.

(b) As principal through an innocent agent

R v Michael (1840) 9 C and P 356

What about R v Cogan & Leak [1976] QB 217?

(c) As an accessory

(i) Before 1861

Principals in the first degree; principals in the second degree; accessories before the fact;
accessories after the fact. Initially, separate treatment and separate convictions, but over
time, common law evolved in a piecemeal fashion to allow accessories to be tried and
sentenced as principals in some cases.

(ii) Under the Accessories and Abettors Act 1861, s8

Whoseover shall aid, abet, counsel or procure the commission of any indictable offence,
whether the same be an offence at common law or by virtue of any Act passed or to be
passed, shall be liable to be tried, indicted and punished as a principal offender.

(iii) Under the Magistrates Courts Act 1980, s44

The same rule is extended to summary offences as well.

R v Giannetto [1997] 1 Cr App R 1

(iv) Joint Enterprise Liability?

2. THE PRINCIPLES BEHIND CONVICTING ACCESSORIES

(a) Why hold accessories liable?

(b) What do you convict accessories of? Derivative liability a starting point

R v Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App R 592

R v A, B, C and D [2010] EWCA Crim 1622, [2011] QB 841

(c) Accessory convicted of a more serious offence than the principal

R v Richards [1974] QB 776

R v Howe [1987] 2 WLR 568
Homicide Act 1957, s2(4)
Coroners and Justice Act 2009, s54(8)

(d) Accessory convicted of a less serious offence than the principal

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R v Stewart and Schofield [1995] 1 Cr App R 441

R v Perman [1996] 1 Cr App R 24

(e) Accessory convicted when principal is excused

R v Bourne (1952) 36 Cr App R 125

(f) Can an accessory be convicted when the principal does not commit a crime?

R v Cogan & Leak [1976] QB 217

R v Millward [1994] Crim LR 527
Thornton v Mitchell [1940] 1 All ER 339
R v Loukes [1996] 1 Cr App R 444

3. ACCESSORIAL LIABILITY FOR AIDING, ABETTING, COUNSELLING AND PROCURING

(a) Actus Reus

(i) Whoseover shall

Aid,
Abet,
Counsel, or
Procure...

Attorney-Generals Reference (No. 1 of 1975) [1975] QB 773

R v Calhaem [1985] QB 808

(ii) The threshold for liability

R v Young and Webber (1838) 8 Car and P 644

R v Cuddy (1843) 1 Car & Kir 210
R v Coney (1882) 8 QBD 534
Wilcox v Jeffrey [1951] 1 All ER 464

R v Clarkson [1971] 3 All ER 344

R v Bland (1987) 151 JP 857
Tuck v Robson [1970] 1 All ER 1171
R v Webster [2006] EWCA Crim 415

(b) Mens Rea

Jogee [2016] UKSC 8

[We must ask] whether the accessory intended to encourage or assist D1 to commit
the crime, acting with whatever mental element the offence requires of D1 (para 90)

(i) Intention to aid, abet, counsel or procure P's acts

Bryce [2004] EWCA Crim 1231 [para 42]

(I) S must act intentionally + S must intend thereby to aid, abet, counsel or procure
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The facts of Derek William Bentley (Deceased) [2001] 1 Cr App R 21

(II) Remember, we're concerned with intention, not motive

NCB v Gamble [1959] 1 QB 11
If one man deliberately sells to another a gun to be used for murdering a third,
he may be indifferent whether the third man lives or dies and interested only in
the cash profit to be made out of the sale, but he can still be an aider and
abettor. (Devlin J)

Lynch v DPP for Northern Ireland [1975] AC 653

If the car was driven in pursuance of a murderous plan and the accused knew
that was the plan and intentionally drove the car in execution of the plan, he
could be held to have aided and abetted even though he regretted the plan or
was horrified by it. (Lord Morris)

But see also Gillick v West Norfolk and Wisbech AHA [1986] AC 112
Sexual Offences Act 2003, s73

(III) We're also not concerned with recklessness as to this element

Simester & Sullivan (6th Ed., 2016) pg 230
'Susan is an auctioneer of various goods. She sells an unlabelled box of goods to
Peter, a wholesaler. Because the goods are in bond, she is unsure (i.e. reckless)
whether the goods are toy pistols or real guns. Susan knows that Peter does not
have a license to deal in firearms.'

(ii) Knowledge or foresight that Ps acts will amount to an offence

Jogee [2016] UKSC 8

But c.f. Bryce [2004] EWCA Crim 1231
c.f. Carter v Richardson [1974] RTR 314

Johnson v Youden [1950] 1 KB 544

Blakely and Sutton v Chief Constable of West Mercia [1991] RTR 405
Callow v Tillstone (1900) 19 Cox CC 576

(I) One of a list of offences

DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140

The relevant crime must be within the contemplation of the accomplice and
only exceptionally would evidence be found to support the allegation that
the accomplice had given the principal a completely blank cheque.... His guilt
springs from the fact that he contemplates the commission of one (or more)
of a number of crimes by the principal and he intentionally lends his
assistance in order that such crime will be committed. (Lord Lowry CJ)

Bainbridge [1960] 1 QB 129

Compare with S v Robinson 1968 (1) SA 666

(II) Accidental and minor departures from the plan

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Gnango [2012] 1 AC 827, at [16] (Lords Phillips and Judge)

Jogee [2016] UKSC 8 [Para 98]
Yemoh [2009] EWCA Crim 930

(III) Deliberate departure to commit a fundamentally different crime

Saunders and Archer (1575) 75 ER 706

he who advises or commands an unlawful thing to be done shall be
adjudged according to all that follows from that same thing, but not from
any other distinct thing.
Anderson and Morris [1966] 2 QB 110
Perman [1996] 1 Cr App R 24

(I) Compare descriptions, not charges

Gnango [2012] 1 AC 827

(II) Compare the conduct, not the intention with which it is performed
Rahman [2009] 1 AC 129

(III) Weapons and brutality of attack as evidence of a fundamentally different crime

English [1999] 1 AC 1
Rafferty [2007] EWCA Crim 1846

(iii) An exception for the performance of a duty?

NCB v Gamble [1959] 1 QB 11

Glanville Williams, Criminal Law: The General Part (2nd Ed., 1961) 124
Simester & Sullivan (6th Ed., 2016) pgs 231-235

4. JOINT ENTERPRISE LIABILITY (IS DEAD!)

i. Old law
Chan Wing-Siu v The Queen [1985] AC 168
Powell and Daniels; English [1999] AC 1
Gnango [2012] 1 AC 827
Parasitic accessory liability arises where (i) D1 and D2 have a common intention to
commit crime A (ii) D1, as an incident of committing crime A, commits crime B, and
(iii) D2 had foreseen the possibility that he might do so. (Lord Phillips and Judge, at
[42])

S was liable for P's deliberate commission of a fundamentally different crime B if she
foresaw the possibility that crime B might be committed, or continued to participate
in the joint enterprise after realising that crime B was being committed. Intention to
encourage or assist Crime B was not necessary.

ii. The law now

Jogee [2016] UKSC 8

Simester, Accessory liability and common unlawful purposes (2017) 133 LQR 73
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5. DEFENCES

(a) Withdrawal

Becerra (1976) 62 Cr App R 212

Rajakumar [2014] 1 Cr App R 12
c.f. Mitchell [2009] 1 Cr App R 31
Grundy [1977] Crim LR 543
Perman [1996] 1 Cr App R 24

(b) Victim as party to a crime

Tyrrell [1894] 1 QB 710

Gnango [2012] 1 AC 827, at [52] (Lords Phillips and Judge)
Brown [1994] 1 AC 212

6. POST-SCRIPT/REVIEW GNANGO

Gnango [2012] 1 AC 827

Public Order Act 1986, s3

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and
his conduct is such as would cause a person of reasonable firmness present at the scene to
fear for his personal safety.

(2) Where two or more persons use or threaten the unlawful violence, it is the conduct of
them taken together that must be considered for the purposes of subsection (1).

Pagett (1983) 76 Cr App Rep 279

Kennedy (No. 2) [2008] 1 AC 269